Bill C-55 (Historical)

An Act to amend the Oceans Act and the Canada Petroleum Resources Act

This enactment amends the Oceans Act to, among other things,
(a) clarify the responsibility of the Minister of Fisheries and Oceans to establish a national network of marine protected areas;
(b) empower the Minister to designate marine protected areas by order and prohibit certain activities in those areas;
(c) provide that, within five years after the day on which the order of the Minister designating a marine protected area comes into force, the Minister is to make a recommendation to the Governor in Council to make regulations to replace that order or is to repeal it;
(d) provide that the Governor in Council and Minister cannot use the lack of scientific certainty regarding the risks posed by any activity as a reason to postpone or refrain from exercising their powers or performing their duties and functions under subsection 35(3) or 35.‍1(2);
(e) update and strengthen the powers of enforcement officers;
(f) update the Act’s offence provisions, in particular to increase the amount of fines and to provide that ships may be subject to the offence provisions; and
(g) create new offences for a person or ship that engages in prohibited activities within a marine protected area designated by an order or that contravenes certain orders.
This enactment also makes amendments to the Canada Petroleum Resources Act to, among other things,
(a) expand the Governor in Council’s authority to prohibit an interest owner from commencing or continuing a work or activity in a marine protected area that is designated under the Oceans Act;
(b) empower the competent Minister under the Canada Petroleum Resources Act to cancel an interest that is located in a marine protected area that is designated under the Oceans Act or in an area of the sea that may be so designated; and
(c) provide for compensation to the interest owner for the cancellation or surrender of such an interest.

[Pat Finnigan, Liberal, Miramichi—Grand Lake, NB]

Thank you, Mr. Chair.

Thank you to the panel here this morning to talk about Bill C-55 and the marine protected areas.

Mr. Smith, I'll start with you. I'm from New Brunswick. I'm from the Miramichi area, home of the beautiful salmon river.

How far offshore does your industry usually go?

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Thank you, Mr. Chair, and thank you, witnesses, for your testimony on Bill C-55.

Mr. Smith, can I start with you in asking if your association has a position on oil and gas in MPAs?

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Thank you, Mr. Chair.

Thank you to our guests this morning.

It's been an interesting process. The MPA study that we started early this year through a motion that I put forward to the committee has evolved now into studying Bill C-55, which is very much interrelated.

Mr. Smith, you talked about some of the current process. We're aware that the current process to establish an MPA is anywhere from five to seven to 10 years.

Would you comment, has that process produced efficient and effective MPAs? I will ask the others on the video conference as well.

[Ken McDonald, Liberal, Avalon, NL]

I don't recall anyone from the oil and gas industry presenting to us yet on Bill C-55 to enable us to ask them what happens when they're doing that directional drilling. I know it takes place, and I know they have the capability to do it, but I don't know.... As well, I know we've had people—I've met with them—from, say, Nalcor Energy in Newfoundland. They did a lot of seismic work and whatnot to figure out where there may be oil and gas off our shores. They've said that one of the ways they find it is that oil actually comes to the surface of the salt water, so there are natural cracks and escapes, whether they be gases leaking naturally over the years or small amounts of oil coming to the surface.

Like you, I don't know what that directional drilling would do or what it would cause to open up, but I can see how it would be a concern.

With regard to fisheries, I know you mentioned the scallop fishery, which I guess is bottom dragging—

Am I done?

[Lois Mitchell, Designated Board Representative, Fundy North Fishermen's Association]

Good morning, and thank you for this opportunity to speak to this issue, which I think is very important to fishermen and to the families and communities in our area.

To give you a bit of an introduction, I am part of a fishing family. My husband, son, and son-in-law all fish together. They fish lobster, scallops, and herring. My husband and I have four grandchildren, all of whom we hope will want to stay in their home community and carry on the family tradition of the fishing way of life.

I've also studied the fishery academically as a sociologist when I did my Ph.D. research on the Deer Island fishing economy, and I'm currently serving as a director of international studies at a small university here in New Brunswick called St. Stephen's University. I speak from personal interest and experience, lived experience. I speak on behalf of the fishermen of Fundy North. My husband is the vice-president of Fundy North, and we're just one and a half weeks into the fall lobster season, which is a huge part of our annual income, so he's out fishing. Most of the fishermen in our part of Fundy North are out fishing and aren't available to speak for themselves.

As I've read through the legislative summary, I am almost persuaded that the MPA network framework is a sensible, and maybe even necessary, approach to protecting the marine ecosystem on which so many of us directly or indirectly depend. I believe and I think I'd be remiss if I didn't at least mention in this short time that there are some gaps and flaws in the approach.

In respect of the process and your time, I'm going to try to frame my responses around Bill C-55. Maria mentioned the length of time that consultation takes, and I know that consultation is a challenging process, but it's an important one insofar as it aims to combine scientific, anecdotal, and industry wisdom and best practices with the regulatory systems that are already built into the marine environment. We all need to come to the table, I think, with a sense of humility in recognition of the challenges before us when it comes to respecting biodiversity on land and in the water. I'm constantly reminded that we know so little about the marine environment, and what we know for sure is literally, quite literally, a drop in the ocean.

I'm going to address three specific things in my comments.

First is a trial period. If there is one thing I am drawn to in this amendment, it's the fact that there would be a five-year period before a permanent MPA is established. Making any MPA permanent is a bit problematic from my perspective, so any delay in doing that may be a positive thing. The reason I am concerned about the permanence of MPAs is that the science on which the proposed network is based is fairly old. Even with the current baseline, which I understand is being established, how do we define the health of marine habitat, and how do we know if fisheries efforts in or around an area are actually detrimental to its long-term biodiversity?

The marine environment is wonderfully dynamic and incredibly resilient. Human activity can certainly be destructive of marine habitat, to be sure, and if we want to survive within the system, we need to manage our activities appropriately.

Second, I want to quickly raise the issue of enforcement. Enforcement of current regulations has been hugely problematic in our area due to lack of resources. There are too few officers and no appropriate boat for enforcement purposes. I think the issue of increased enforcement expectations in the establishment of MPAs, especially if they're introduced quickly, could be a problem.

Finally, there is the precautionary approach. To argue for a precautionary approach, which could be loosely translated as "we think an MPA will be a good thing but we don't actually know that it will be”, and to take it a step further, that it's quite likely we will never know with complete certainty that any outcome is a result of the establishment of an MPA in a specific area, may be sufficient for those of you who are tasked with the enormous responsibility of making laws.

Speaking from the perspective of fishermen, their families, and communities, they—and we—are less enthusiastic about potentially being collateral damage in an experiment of this magnitude. Telling fishermen that they will be able to fish within an MPA under certain conditions or that their current activities will be permitted is a dangerous proposition, I think, and perhaps reminiscent of the way indigenous people lost huge parts of their culture. I don't have time to explain that, but I think there are cultural similarities between indigenous people and fishing communities.

As the marine environment changes over time, so do the fisheries. In 32 years, I've seen enormous changes in fisheries in our area and I expect that they will continue. Whatever we do or don't do affects the marine environment. Fishermen really see themselves as part of the ecology, not as separate from it. I think we have to take that into account in all of these deliberations.

Thank you.

[Tom Smith, Executive Director, Aquaculture Association of Nova Scotia]

Thank you very much.

Good morning, Mr. Chair, members of the committee, and ladies and gentlemen.

Thank you for the opportunity to speak today. My name is Tom Smith. I'm the executive director of the Aquaculture Association of Nova Scotia. I've worked in the food industry both here in Canada and internationally with land farmers, sea farmers, food and drug retailers, and food processors for over 20 years.

At the Aquaculture Association of Nova Scotia, the AANS, our mission is to support the production of quality food in the cool, clean waters of Nova Scotia, creating wealth based on a renewable resource. We represent land- and marine-based seafood farmers in more than 14 farmed species, such as salmon, trout, and striped bass, and in the shellfish sector, oysters, clams, quahogs, and mussels, all of the products that we love to enjoy. We represent those farmers throughout Nova Scotia, from the south shore of Nova Scotia and the Annapolis Valley to the north shore and the Bras d'Or lakes in Cape Breton. More than 100 members strong, we represent sea farmers, industry suppliers, academia representatives, and aquaculture processors.

The AANS is proud of its work with Nova Scotia sea farmers to assist in the development and growth of the aquaculture industry in Nova Scotia. Our organization's community outreach and research and development initiatives, we believe, are integral to our collective aspirations of developing greater economic opportunities for our Nova Scotia rural and coastal communities.

We were very pleased over the past number of years to have had the opportunity to work closely with the Nova Scotia Department of Fisheries and Aquaculture in assisting and collaborating in the development of the new Nova Scotia aquaculture regulatory framework that was introduced over the past year. We are also pleased to have worked with Fisheries and Oceans Canada over the last number of years on recommendations to the federal aquaculture activities regulations, the AAR.

I am here today at the invitation of the standing committee to provide our comments and insights on Bill C-55, an act to amend the Oceans Act and the Canada Petroleum Resources Act.

Let me begin by stating that the aquaculture industry is deeply committed to the protection of our environment and the responsible and sustainable management of our natural resources. We believe environmental protection and economic development can both be part of a thriving Nova Scotia community.

Aquaculture development is a key priority for all of us in the province of Nova Scotia. Over the past 50 years our history has shown that aquaculture is a sustainable activity in our waters.

Nova Scotia has tremendous potential for aquaculture expansion in all regions of our province. I was very pleased to have been on the podium last June when Premier Stephen McNeil, and Keith Colwell, the Nova Scotia Minister of Fisheries and Aquaculture, announced that following years of government and industry collaboration, the Province of Nova Scotia was now accepting applications for new aquaculture leases and licences.

In collaboration with the provincial government, we believe that Nova Scotia has the most robust, transparent, and modern regulatory framework for aquaculture management in Nova Scotia, if not the world. In my presentation that day, I was proud to state that the industry had worked closely with important stakeholders, first nations communities in Nova Scotia that are actively involved in aquaculture development, and with the public, as we participated in the regulatory reform in Nova Scotia.

We believe that all the pieces are in place for the responsible and sustainable development of the aquaculture industry in Nova Scotia. We are now ready to go. With this momentum, there are significant private sector investments being made in aquaculture right now in Nova Scotia, with many more developments being planned.

However, we believe that the current approach to MPA identification and development in the coastal waters of Nova Scotia represents an immediate and significant risk to present aquaculture operators and to future development. To date, engagement on MPA identification and development with the aquaculture industry, in our opinion, has been inadequate.

DFO has not directly provided any indication on what types of aquaculture, if any, would be permitted in an MPA. DFO has met with other stakeholder groups, without engaging the aquaculture industry, and indicated that certain types of aquaculture would not be permitted in an MPA. We believe that this is unacceptable, and we believe this further perpetuates negative attitudes toward the aquaculture industry.

DFO has not supplied any science, to date, to support the exclusion of aquaculture from MPAs. Areas identified for potential MPAs currently have several types of aquaculture that DFO wants to exclude and these are areas of high interest for future developments.

DFO's current approach will affect existing operators and significantly dampen investor confidence. We are asking DFO to slow down the next phase of MPA identification and development, properly engage the aquaculture industry of Nova Scotia, and make decisions based on sound science.

The Nova Scotia aquaculture industry supports the protection and conservation of our marine resources, as evidenced by our progressive codes of best practice, support for the new Nova Scotia aquaculture regulations, and the way we run our farms every day of the year.

Nova Scotia has also made significant contributions to the MPA process already. We believe, as does the International Union for Conservation of Nature, IUCN, that sustainable aquaculture should be considered and included in any MPA development. “Promoting synergies between multiple-use MPAs and identified compatible activities, such as sustainable aquaculture production is essential”, according to the IUCN.

A clear understanding of what will be allowed in any MPA must be determined before our industry can provide any feedback on proposed areas for consideration. The careful inclusion of aquaculture in MPAs, as has been done in Australia and Scotland, could allow DFO to fulfill its MPA objectives without denying Nova Scotians a future in aquaculture.

I do want to be clear, though, that we enjoy a good relationship with Fisheries and Oceans Canada. We work closely with DFO on many files and share many common interests and goals. The AANS is a long-standing member of the Canadian Aquaculture Industry Alliance, CAIA, and I am joined here today by Tim Kennedy, executive director of CAIA. Working with Minister LeBlanc and his senior staff, CAIA and DFO are fully engaged in discussions around the creation of a national aquaculture act, a process the AANS fully supports.

Just as an aside, yesterday was the opening conference for CAIA, and Minister LeBlanc was very gracious to be there, open the conference, and express his appreciation for the work we are doing.

We've also worked very closely with DFO on improvements to the Canadian aquaculture activities regulations, coordinating this development with industry and the Atlantic provincial governments. As well, we continue to work closely with all federal and provincial regulators to ensure the safe and progressive development of our aquaculture industry, an industry that we strive to ensure will grow and prosper.

Finally, before I finish, I want to extend a warm invitation to all of you to attend our Aquaculture Association of Nova Scotia annual Sea Farmers Conference, January 24 to 26. The theme of this year's conference is “Making Waves: Aquaculture's Next Chapter”, and we believe that, as a result of all the work and collaboration between industry, government, and the public over the last number of years, aquaculture's next chapter will indeed be very bright.

Ladies and gentlemen, thank you very much for the opportunity to appear. I look forward to any questions you might have.

[The Chair, Liberal, Scott Simms]

Good morning, everybody. Pursuant to the order of reference of Tuesday, October 17, we are here to study Bill C-55, an act to amend the Oceans Act and the Canada Petroleum Resources Act.

I have just a bit of committee business before we introduce our guests. If members recall, we moved clause-by-clause from December 5 to December 7. That leaves December 5 open, which I think was addressed by Ken McDonald before we shut down.

What I'm proposing is that on December 5 we should do the subcommittee, the steering committee, to discuss future business. I know that in the past we didn't use the subcommittee that much and just used the whole committee, but it was suggested that we should go back to the subcommittee. I'm suggesting December 5, and instead of 8:45 a.m., let's say 9:45.

I know Todd isn't here.

Fin, are you okay with that? Okay.

Are you on it, Bernadette?

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

That would certainly be heavily impacted by Bill C-55.

Mr. Wareham.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

One part that we've heard is troubling about Bill C-55 is proposed section 35.2:

The Governor in Council and the Minister shall not use lack of scientific certainty regarding the risks posed by any activity that may be carried out in certain areas of the sea as a reason to postpone or refrain from exercising their powers or performing their duties and functions under subsection 35(3) or 35.1(2).

This is why I asked if we have the science. Do we know what's there that we're needing to protect? This bill would seem to want to give power to the minister to be able to impose these protected areas with a lack of science.

[Nikki Macdonald]

Again, I remind you that, from my perspective, Bill C-55 is enabling legislation that sets out a framework through which we make decisions on what we intend to protect. To use again the term “adaptive management”, for me it's implementation. What exactly are we going to be protecting? That's an ongoing process that will be decided upon separate of the passage of Bill C-55.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Thank you, Mr. Chair. I'll be as quick as I can. If I get cut off, I get cut off.

Quickly, to both of you, do you feel there's been enough time to identify specifically what it is that we need to protect and want to protect in order for Bill C-55 to move forward to reach these targets in 2020? Has there been enough time to identify what needs to be protected or what we want to protect?

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

I'll look forward to the written submission. Thanks, Mr. Wareham.

My second question is to both Ms. Macdonald and Mr. Wareham. In terms of the sectoral versus holistic approach—I hear, Ms. Macdonald, your comments about holistic is not necessarily capturing integrated management processes or plans—IMPs—but do you see evidence...? I mean, you also talked about a lack of resources, a lack of political will and other things, and Mr. Wareham, you referenced a need for investment, which is similar to resources, and commitment, which is political in nature as well as to the process.

I'm more familiar.... I'll cite, for instance, wild salmon policy. I'm familiar with aquaculture where we're actually not achieving the integrated processes. Even under the wild salmon policy there was reference and evidence that the government is not achieving what its intended statements are. You've referenced the Oceans Act and this Bill C-55 is enabling and is not as specific, so it's....

Can you comment about how we can achieve or move toward IMPs or a holistic approach versus this sectoral...? How do we have that significant commitment and put those resources to it to succeed?

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Thank you, Mr. Chair, and thank you to both our witnesses for being here and providing your testimony on Bill C-55.

I think both of our witnesses have referenced Canada's international commitments. There's been some comment at this committee that this has been a rushed process, but Ms. Macdonald, you point out now, and rightly so, that Canada committed to our international agreement back in 1992, so Canada, essentially, has had 25 years to get to 5%, not a couple of years. We're looking at 28 years to get to 10%. Some would now argue that these targets are actually quite low, when you look at other countries around the world and what they've been achieving in terms of protecting their oceans.

I want to talk about two things, the consultation process and the idea of sectoral versus holistic. Starting with Mr. Wareham, on the consultation process, you've outlined what that process might look like. You talked about defined timelines, defined targets, and a defined planning process.

First of all, can you or have you written or provided those recommendations or your testimony in writing, or could you provide this committee with those recommendations or suggestions in writing?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Okay. Thank you.

You know, it's interesting. Time and again we have witnesses coming before the committee saying that this is an important piece of legislation. There's no doubt about that. It's interesting to hear our colleague across the way ask if there's a concern that we won't get this right, yet it's this side of the committee that has been pushing for a longer period of time, one where we can actually get out to the communities and consult and meet with those who are feeling that they haven't been consulted.

I'll use this as an example. We had the Fisheries Council of Canada yesterday. We had Mr. Helin here from Lax Kw'alaams. Time and again they're saying about the consultations that really they're just being told what's going to happen, or they're not being engaged at all in the case of some of those from the Fisheries Council of Canada—not engaged in the oceans plan, in the Fisheries Act review, in the MPA process. Now with Bill C-55, we're hoping we can see some of those witnesses come forward.

In your testimony today, Mr. Wareham, you said that you've been engaged for a very long time on these processes. Is that correct?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Thank you, Mr. Chair.

Thank you to our guests who are here. We really appreciate the time that you take, the effort that you put into not only being here today but also your efforts in your industry working with stakeholders and government to protect our oceans.

I'll ask both of you straightforward questions. Is Bill C-55 an important piece of legislation?